[00:00:21] Speaker 01:
Thank you, Your Honor.

[00:00:23] Speaker 03:
This case involves a child who is now 19 years old.

[00:00:26] Speaker 03:
He cannot speak.

[00:00:27] Speaker 03:
He cannot go to the bathroom by himself.

[00:00:30] Speaker 03:
He is totally dependent on his parents.

[00:00:33] Speaker 03:
This case screams for an appeal, and the government is basically saying that it should not have been appealed.

[00:00:39] Speaker 03:
Even though the standard of review is arbitrary and capricious, there is such a thing as abusive discretion.

[00:00:46] Speaker 03:
And there are certain rules imposed by this court on

[00:00:49] Speaker 03:
how these cases are to be heard.

[00:00:52] Speaker 01:
Can I just ask you something?

[00:00:55] Speaker 01:
This is not merits related.

[00:00:57] Speaker 01:
This is just so I'll understand what the record is in terms of what's at stake here.

[00:01:02] Speaker 01:
So there's 1,500 unchanged hours for attorney's fees in the post litigation.

[00:01:09] Speaker 01:
But are you seeking here just, and tell me if these numbers are right.

[00:01:13] Speaker 01:
I'm getting them from the court of claims opinion, that 160 hours

[00:01:18] Speaker 01:
deals with the appeal process.

[00:01:21] Speaker 01:
So is what's at stake in this case just that 160 hours?

[00:01:25] Speaker 03:
That's all there is, John.

[00:01:26] Speaker 03:
This is strictly about whether we had reasonable cause to appeal.

[00:01:32] Speaker 03:
And the court below and the special master will do is no reasonable basis for appeal.

[00:01:40] Speaker 03:
The problem with that, of course, is we are in a program where

[00:01:45] Speaker 03:
Parents cannot hire a lawyer.

[00:01:46] Speaker 03:
They must rely.

[00:01:48] Speaker 01:
Can I just ask you one more specific question, which is, have you allocated what portion?

[00:01:53] Speaker 01:
I mean, you've got several arguments around here.

[00:01:55] Speaker 01:
One is the substantial evidence, and the other is this question of Millick and the constitutional argument.

[00:02:03] Speaker 01:
Do you have any sense for what portion of that 160 hours that's on appeal is allocated between those two questions?

[00:02:10] Speaker 01:
No, Your Honor.

[00:02:12] Speaker 01:
I cannot split the baby here.

[00:02:14] Speaker 01:
I mean, eventually, even if you were to prevail on one or the other, somebody's going to have to split the baby here.

[00:02:19] Speaker 01:
Yes.

[00:02:20] Speaker 01:
You don't have any sense for whether it's half or quarter or anything like that.

[00:02:25] Speaker 03:
I would say I could not, I couldn't divide it like that.

[00:02:28] Speaker 03:
No, I just have no idea.

[00:02:29] Speaker 04:
Counsel, in Millick, you had, in fact, were you the same counsel there?

[00:02:36] Speaker 03:
No, I was not.

[00:02:38] Speaker 04:
In any event, Millick was the unanimous decision of this court.

[00:02:43] Speaker 04:
decided the constitutional issue, and whether to award fees for a further appeal was discretionary.

[00:02:56] Speaker 04:
And you did get some.

[00:02:57] Speaker 04:
You got over $200,000.

[00:02:59] Speaker 04:
So why was there an abuse of discretion in not awarding more when the issue had already been decided?

[00:03:09] Speaker 03:
Well, the issue had been decided by this court, but in Miller,

[00:03:13] Speaker 03:
They filed a petition for certiorari.

[00:03:17] Speaker 03:
And unlike most petitions of that kind, the Supreme Court asked the government to respond to that petition.

[00:03:23] Speaker 03:
So obviously, somebody in the Supreme Court took that argument as serious.

[00:03:28] Speaker 03:
And so even though this court ruled against us on this issue, the Supreme Court had some problem with that.

[00:03:35] Speaker 04:
Do you have any idea of what percent of 500-plus decisions every year

[00:03:43] Speaker 04:
get granted certiorari by the Supreme Court, even when they ask for the views of the SG?

[00:03:53] Speaker 03:
Well, I know it's very, very slim.

[00:03:55] Speaker 04:
Pretty slim.

[00:03:56] Speaker 04:
So therefore, how could it have been an abusive discretion for the court not to have awarded more than 200-something thousand in fees?

[00:04:08] Speaker 03:
Well, there's a different law firm, but basically the fact of the matter is there had been

[00:04:13] Speaker 03:
no final decision on the Miller case until the Supreme Court said no.

[00:04:17] Speaker 03:
And that was six months after this case was completely over.

[00:04:20] Speaker 01:
So while this... Do you know if our court is required to follow its precedent, particularly after a denial of rehearing on Monk, can we not rely on that precedent until and unless the Supreme Court has finally denied cert?

[00:04:34] Speaker 03:
Yes, you can.

[00:04:35] Speaker 01:
But of course that would not... So that would be precedent that would be governing our court, at least.

[00:04:39] Speaker 01:
It would be pre-governing your court.

[00:04:41] Speaker 01:
Whether or not the Supreme Court is going to...

[00:04:42] Speaker 01:
You just made a comment, and I'm just interested.

[00:04:44] Speaker 01:
So I don't want to put you on the spot.

[00:04:45] Speaker 01:
But you said you discussed the rarity of the Supreme Court asking for a response.

[00:04:52] Speaker 01:
Do you have any numbers on that?

[00:04:53] Speaker 04:
No, I do not.

[00:04:55] Speaker 01:
I don't.

[00:04:56] Speaker 04:
Now, in response to the Chief Judge's question about whether we can rely, and you said, yes, you can, we must follow our own panel decisions.

[00:05:08] Speaker 04:
Of course you do.

[00:05:08] Speaker 03:
Unless we're going back.

[00:05:10] Speaker 03:
Yes, absolutely.

[00:05:11] Speaker 03:
I mean, you can always overrule it if you wish to, but that requires... In bank?

[00:05:17] Speaker 03:
Huh?

[00:05:17] Speaker 03:
In bank.

[00:05:17] Speaker 03:
In bank.

[00:05:17] Speaker 03:
In bank, yes.

[00:05:19] Speaker 03:
So that can happen.

[00:05:21] Speaker 02:
How much time was there between when the Millic opinion issued and when you filed your brief?

[00:05:28] Speaker 03:
I think that the Millic decision, I don't know.

[00:05:30] Speaker 03:
I think it was after we filed our brief the decision came down.

[00:05:35] Speaker 02:
But the Millic... What if the decision came down seven days before you filed your brief?

[00:05:40] Speaker 02:
Would that make a difference?

[00:05:41] Speaker 03:
Seven days?

[00:05:43] Speaker 03:
It probably would, yes.

[00:05:44] Speaker 03:
I frankly don't remember the schedule there.

[00:05:46] Speaker 03:
I just know that while the case was pending here, the whole case, there was no final decision from the Supreme Court.

[00:05:53] Speaker 03:
So we relied on that in saying that the argument was viable until the Supreme Court said it wasn't.

[00:06:00] Speaker 03:
And that was six months after this case was over.

[00:06:03] Speaker 03:
So that's the issue.

[00:06:05] Speaker 02:
You also, in the Millett case, there was some sort of petition seeking

[00:06:11] Speaker 02:
and bank review in this court, right?

[00:06:12] Speaker 03:
Yes, and that was denied.

[00:06:15] Speaker 01:
Right.

[00:06:17] Speaker 01:
OK.

[00:06:17] Speaker 01:
So if we disagree with you on the Millick question, are we left with any further arguments with regard to the 160 hours?

[00:06:29] Speaker 03:
No, not really.

[00:06:31] Speaker 03:
Basically, the 160 hours, of course, there are two.

[00:06:34] Speaker 03:
There were two questions before the court.

[00:06:35] Speaker 03:
One was the actions of the special master in denying the claim.

[00:06:40] Speaker 03:
And in that case, we have a situation where the special master essentially refused to pay any attention to the treating physicians, and there were a lot of them, and relied upon speculation that none of them had done their job.

[00:06:53] Speaker 02:
Did the special master make credibility determinations?

[00:06:58] Speaker 03:
She did.

[00:06:59] Speaker 03:
But she basically did not.

[00:07:01] Speaker 03:
Well, she sort of did.

[00:07:03] Speaker 03:
But this case

[00:07:07] Speaker 03:
the treating physician, the man who gave the shot, it was somebody who knew that child from birth.

[00:07:13] Speaker 03:
He then, he discovers the autistic condition a week later at a family party and refers the child to other doctors.

[00:07:22] Speaker 03:
His opinion that the child was, that the vaccination caused the injury because he knew the child before, he knew the child after, and he saw the entire scene, that was completely discounted by experts from elsewhere and one,

[00:07:37] Speaker 03:
The case was essentially lost on videotapes, where a psychologist, a fairly new psychologist, is disagreeing with expert witnesses and family members, et cetera, who have years of experience.

[00:07:52] Speaker 03:
And there is such a thing as abusive discretion.

[00:07:55] Speaker 03:
And she and the person who criticized her, our expert was Dr. Shafir, who said the criteria that she is using to look at these videotapes can be seen in any child.

[00:08:07] Speaker 03:
And there is no way to discern what is going to be autistic and what isn't.

[00:08:11] Speaker 03:
It's too early.

[00:08:11] Speaker 03:
It can't be done.

[00:08:13] Speaker 03:
And she agreed that what she was looking at was stuff that was very subtle, very hard to discern.

[00:08:20] Speaker 03:
And the excuse was, well, these criteria that she was using had not been developed yet.

[00:08:25] Speaker 03:
We are talking about expert witnesses who have been dealing with autistic children for years, thousands of cases.

[00:08:32] Speaker 03:
And all of a sudden, and of course, the assumption the special master makes is these people are not keeping current.

[00:08:37] Speaker 03:
But Schaffer said he knew all about what she was talking about and said he couldn't be relied upon.

[00:08:42] Speaker 02:
Can I go back to you, back with you on the Millick point for a minute?

[00:08:46] Speaker 02:
In your briefing, your opening brief argued this constitutional point, I guess, seven days after this court issued its decision in Millick.

[00:08:57] Speaker 02:
But do you know what the relative timing was?

[00:08:59] Speaker 02:
I mean, I presume a lot of appellate briefs are prepared well in advance of seven days before a briefing due.

[00:09:06] Speaker 03:
That brief took quite a bit of time.

[00:09:08] Speaker 02:
How did your constitutional argument in the breadth and detail with which you argued it compare to the way it was argued in Millic?

[00:09:16] Speaker 02:
Do you know the answer to that question?

[00:09:17] Speaker 03:
No, I don't know the answer.

[00:09:18] Speaker 03:
That wasn't there for Millic.

[00:09:19] Speaker 02:
I understand Millic, it was... But you could have looked at the briefs in Millic.

[00:09:22] Speaker 03:
I looked at the briefs in Millic and Mr. Krakow... How did they look compared to the brief that you filed?

[00:09:26] Speaker 02:
The father here, Mr. Krakow... I understand.

[00:09:28] Speaker 02:
I'm trying to help you.

[00:09:30] Speaker 02:
Yes.

[00:09:31] Speaker 02:
Okay.

[00:09:32] Speaker 02:
Did your discussion of Millic, was it more extensive?

[00:09:36] Speaker 02:
Is your discussion of the constitutional issue more extensive and make more points than had been made in Millic?

[00:09:43] Speaker 03:
Far more.

[00:09:44] Speaker 03:
Mr. Krakow had thrown this in as an aside.

[00:09:47] Speaker 03:
We focused on it because our position is, of course, that if you do not have access to an Article III court in a program, any program that is a common law claim,

[00:10:00] Speaker 03:
that has basically been removed from Article III courts by Congress, there must be open access to an Article III court at some point in the process, or there's a constitutional problem.

[00:10:11] Speaker 03:
And we're saying here the same thing applies.

[00:10:13] Speaker 03:
If indeed, the merits appeal in this case with regard to the special master's decision is a good appeal.

[00:10:21] Speaker 03:
She did do things that are questionable.

[00:10:26] Speaker 03:
If a lawyer can now be denied

[00:10:29] Speaker 03:
all fees for a merits appeal that's not frivolous.

[00:10:33] Speaker 03:
I mean, all through this case, everybody had said this was not a frivolous appeal.

[00:10:37] Speaker 03:
But that's not the standard, right?

[00:10:39] Speaker 03:
Is that the standard?

[00:10:40] Speaker 03:
What?

[00:10:41] Speaker 01:
Whether it was frivolous or not?

[00:10:42] Speaker 03:
Well, they're saying it isn't the standard.

[00:10:44] Speaker 03:
I mean, basically, if there's a frivolous case, there's no reason to pay attorneys for that.

[00:10:49] Speaker 02:
But you agree that's not the standard.

[00:10:51] Speaker 03:
That is not the standard.

[00:10:52] Speaker 03:
But they're trying to impose it.

[00:10:53] Speaker 02:
That's not the standard that the court of federal claims applied here, right?

[00:10:58] Speaker 03:
Well, no.

[00:10:59] Speaker 03:
The Court of Federal Claims said that there is an issue of whether there's any merit to this good reason to bring the claim.

[00:11:07] Speaker 03:
And our position was, yes, there was plenty of good reason about the facts.

[00:11:12] Speaker 03:
But we're also saying that, if indeed, you cannot mean it.

[00:11:15] Speaker 03:
We had the issue of how those facts are evaluated.

[00:11:19] Speaker 03:
Because even under the arbitrary and capricious standard, there is always the abuse of discretion.

[00:11:26] Speaker 03:
And where you have a record like this, whether we went through every analysis of every expert, was essentially the government's expert was right, and the other people hadn't done their job.

[00:11:37] Speaker 03:
And this involved, I mean, we were talking about a disease, a mitochondrial disease, where there was only about 30 experts in the United States.

[00:11:45] Speaker 03:
And we had four of them on this case.

[00:11:47] Speaker 03:
And one, the government's expert, admitted he disagrees with everybody.

[00:11:52] Speaker 03:
Yet he was accepted, and the others were dismissed.

[00:11:55] Speaker 03:
And they're all experts.

[00:11:57] Speaker 03:
Several of them were treating physicians.

[00:11:59] Speaker 03:
There was one expert who was just an expert.

[00:12:01] Speaker 03:
But they were treating physicians that Dr. Boris had sent the child to validate whether this was a mitochondrial case or not.

[00:12:08] Speaker 03:
And Dr. Chauffeur, who did the tests, and then the three experts up in Boston, all agreed that this was more likely than not.

[00:12:18] Speaker 03:
And mitochondrial disease is a disease that they cannot definitively diagnose.

[00:12:25] Speaker 03:
I think you're arguing fast.

[00:12:28] Speaker 03:
No, I'm sorry.

[00:12:29] Speaker 03:
It shouldn't be.

[00:12:29] Speaker 01:
Why don't we hear from the other side?

[00:12:37] Speaker 00:
Good morning.

[00:12:38] Speaker 00:
May it please the court?

[00:12:39] Speaker 00:
Because petitioners were not awarded compensation in this vaccine act case, they were not entitled to attorney's fees and costs as a matter of right.

[00:12:47] Speaker 00:
Rather, any award was purely discretionary by the special master.

[00:12:50] Speaker 01:
Can I?

[00:12:51] Speaker 01:
to direct you to page seven in the appendix.

[00:12:54] Speaker 01:
And this is the Court of Plains opinion, I guess, which just I'm just looking at it because I'm looking for a summary of what basis was here.

[00:13:03] Speaker 01:
So on the top of that page, I think they summarize that there were effectively there's an overlap here.

[00:13:08] Speaker 01:
But there were sort of several bases for the vaccine special master to decline attorneys

[00:13:18] Speaker 01:
The first seems to be the fact that we 36th the original case, right?

[00:13:22] Speaker 00:
Correct.

[00:13:23] Speaker 00:
That is one, yes.

[00:13:25] Speaker 01:
And the second seems to be that we had already rejected the constitutional argument in another case, Millick.

[00:13:34] Speaker 01:
And then the third, just legal mirrorless.

[00:13:39] Speaker 01:
Can I ask you, I'm going to direct your attention to the first two.

[00:13:43] Speaker 01:
Isn't it a little

[00:13:45] Speaker 01:
dubious to be relying on the fact that we just 36 did, and we 36 a lot of cases, I don't know that that speaks to anything other than there's a summary affirmance of the opinion.

[00:13:58] Speaker 01:
To suggest that that means that it didn't have any merit or that it was not reasonable is a bit of a stretch, is it not?

[00:14:10] Speaker 00:
Only this court knows why you decided to do Rule 36 dismissal.

[00:14:14] Speaker 00:
But the special monster was very clear that it was just one of the reasons that he decided that attorney's fees.

[00:14:21] Speaker 01:
OK, so let's go to the second, which is the Millick case.

[00:14:24] Speaker 01:
And even though your friend didn't really press this point, I think Judge Stowe alluded to the fact that, as we see the record, Millick was decided one week before the appellant's blue brief was filed in this case.

[00:14:40] Speaker 00:
Correct.

[00:14:41] Speaker 01:
And if that's the case, and if, in fact, most people, one would think, would write the brief or do most of the preparation work more than one week before, why shouldn't he at least be credited, even if we reject his notion about Supreme Court and all that stuff, why shouldn't he at least be credited with the cost of that initial brief?

[00:15:06] Speaker 00:
Had he stopped there, I think there's a good chance the special master would have credited him, but he did not.

[00:15:11] Speaker 00:
The special master in evaluating Millic and whether or not that was a reasonable, the constitutional argument brought in Millic still going on, whether or not that was reasonable, he said it wasn't for several reasons.

[00:15:28] Speaker 00:
And these reasons pre-existed the briefing and after the briefing.

[00:15:32] Speaker 00:
First being, this court's standard of review has been clear for 25 years.

[00:15:37] Speaker 00:
There is no question about what the standard of review is.

[00:15:40] Speaker 00:
This court unanimously, 3-0, said that petitioners' brief, petitioners' appeal on this issue had no merit.

[00:15:52] Speaker 04:
You're saying even aside from Millick, the issue was not really meritorious.

[00:15:57] Speaker 00:
Correct.

[00:15:59] Speaker 00:
But I think even if you put all of that aside, and the Special Master addresses this in his opinion, even if you put all of that aside and this court did say, or the Supreme Court did say, that the standard of review

[00:16:09] Speaker 00:
was unconstitutional and that this court should be reviewing this case de novo, it all comes back to the fact that the facts of the case in every single instance, every single factual determination and credibility determination went against the teachers.

[00:16:24] Speaker 01:
But that's a little attenuated, right?

[00:16:25] Speaker 01:
You're not saying if you think he's wrong on the facts that he shouldn't be able to press the standard of review?

[00:16:33] Speaker 00:
I say that he would not have prevailed under any standard of review.

[00:16:38] Speaker 01:
But we have, looking at this case kind of upside down and backwards, we got a lot going on in our jurisprudence with regard to whether or not someone preserved their rights to argue something, because we've got a lot of cases where there's intervening Supreme Court law.

[00:16:52] Speaker 01:
And preservation is a pretty important deal.

[00:16:55] Speaker 01:
So if he had, let's assume milk went the other way, or let's assume the Supreme Court granted cert, stranger things have happened.

[00:17:03] Speaker 01:
And he did exactly what he needed to do in this case by preserving that argument by at least arguing it in blue brief.

[00:17:14] Speaker 01:
So why isn't that kind of enough in the context of this whole case to say, at least with respect to the blue brief, he was in a position of appropriately preserving that right?

[00:17:27] Speaker 01:
And if you can clarify, is your answer, which may be a good one, which is that he wasn't arguing

[00:17:33] Speaker 01:
He was arguing only the whole search deck, which went on for a protracted period of time.

[00:17:40] Speaker 01:
He was not isolating the blue group.

[00:17:42] Speaker 00:
Correct.

[00:17:43] Speaker 00:
And the special master has that discretion.

[00:17:45] Speaker 00:
The standard of review, purposely by Congress, was to give the special master the flexibility to look at everything that is happening and decide whether or not there's a reasonable basis to bring the claim and whether or not there's a reasonable basis for the claim to continue.

[00:18:00] Speaker 00:
And that includes the appeals.

[00:18:02] Speaker 00:
The special master

[00:18:04] Speaker 00:
looked very carefully at the... Sorry, there were two special masters in this case, just to clarify.

[00:18:09] Speaker 00:
There was the special master who heard the case and wrote the decision, and then the special master who determined fees.

[00:18:15] Speaker 00:
The special master who determined fees looked at the special master who wrote the case and saw a 161-page thorough decision and said, I don't think there was a reasonable basis to appeal this case.

[00:18:31] Speaker 00:
But yet,

[00:18:32] Speaker 01:
Except he has no way of knowing necessarily whether if the standard of review were different or flipped, the case might look a lot different, right?

[00:18:45] Speaker 00:
I think, well, he made clear that it doesn't matter whether or not the standard of review changed.

[00:18:52] Speaker 00:
Petitioners lose this case.

[00:18:54] Speaker 01:
What I think a lot of people were saying was Millic was decided.

[00:18:57] Speaker 01:
We had already decided Millic.

[00:18:59] Speaker 01:
That's a different point.

[00:19:00] Speaker 01:
That may be a very good one if you're right on the facts underlying that.

[00:19:04] Speaker 01:
But that's what he was saying, right?

[00:19:06] Speaker 00:
He said both things.

[00:19:07] Speaker 00:
He said Millic was decided.

[00:19:10] Speaker 02:
What page are you looking at in the appendix?

[00:19:14] Speaker 00:
This is appendix at pages 20 and 21.

[00:19:21] Speaker 02:
What specific language are you relying on for him saying, even if they had been successful in Millic, they didn't have a reasonable chance of succeeding on appeal?

[00:19:30] Speaker 00:
Page 21, the last sentence of this section.

[00:19:36] Speaker 00:
Well, the whole last paragraph.

[00:19:38] Speaker 00:
Second, starting second.

[00:19:39] Speaker 00:
Sorry, exactly.

[00:19:40] Speaker 00:
Even in the unlikely event, the Federal Circuit overturned its own precedent and applied a different standard of review.

[00:19:46] Speaker 00:
And even if the Circuit considered the factual issues de novo

[00:19:50] Speaker 00:
there is still no reason based on the existing record to speculate that the Federal Circuit would have reached a different conclusion than Special Master Vowell.

[00:19:57] Speaker 00:
Upon my own review of Special Master Vowell and Judge Braden's decisions, I find the weight of the evidence going to core aspects of petitioner's claim means so far against petitioner's claim that such an outcome would be highly unlikely.

[00:20:10] Speaker 00:
And I direct you to the Special Master's summary of her decision, which is appendic.

[00:20:17] Speaker 00:
appendix, page 1732, in which she summarized the next 150 pages, which says... What about the fact that the Supreme Court asked for the views of the solicitor general?

[00:20:33] Speaker 04:
And time-wise, how does that relate to the expenditure of money on the appeal?

[00:20:40] Speaker 00:
I don't know what the Supreme Court's standards are for asking for a response from the government.

[00:20:46] Speaker 04:
Well, they don't do it on most of these deals.

[00:20:49] Speaker 00:
If you say so, Your Honor, I believe you.

[00:20:52] Speaker 01:
Can I just clarify?

[00:20:53] Speaker 01:
Sure.

[00:20:53] Speaker 01:
There are two different things I've got in my brain with respect to responses.

[00:20:57] Speaker 01:
There's when the Supreme Court has a petition in front of it, and it asks for the views of the Solicitor General.

[00:21:04] Speaker 01:
That, I think, is a fairly big deal.

[00:21:07] Speaker 01:
But I understood, so maybe I'm wrong,

[00:21:10] Speaker 01:
The response we're talking about here is not a specific request for the SG's views, but it's simply every time somebody files a cert petition, it's up to the other side where they want to file a response.

[00:21:23] Speaker 01:
And many times they don't.

[00:21:24] Speaker 01:
The Supreme Court just says, file a response.

[00:21:29] Speaker 01:
Which bucket is this one?

[00:21:30] Speaker 00:
The latter bucket.

[00:21:32] Speaker 00:
I did not actually see what the solicitor filed, but my understanding was it was perfunctory at best.

[00:21:40] Speaker 00:
But the Supreme Court denied certiorari after that.

[00:21:44] Speaker 00:
So they did not believe that it was worthy of their attention.

[00:21:53] Speaker 00:
There are no further questions.

[00:21:55] Speaker 00:
We believe the Special Master did not abuse his discretion, and we respectfully request that you affirm.

[00:21:59] Speaker 00:
Thank you.

[00:21:59] Speaker 03:
I will say that as Mr. Krakow

[00:22:10] Speaker 03:
Mr. Krakow is the father of this child.

[00:22:15] Speaker 03:
There was extensive review of the Milton case as it proceeded at every stage and our decision to continue this was based upon the fact that there was some interest shown at the Supreme Court and we thought we had a chance, just a chance, but we had basically we could not abandon the claim

[00:22:34] Speaker 02:
I understand correctly Mr. Krakow was the attorney in the Millett case.

[00:22:38] Speaker 02:
He was the attorney in the Millett case.

[00:22:39] Speaker 02:
And he's the petitioner here.

[00:22:41] Speaker 03:
He's for his son here.

[00:22:43] Speaker 03:
His son is the petitioner here.

[00:22:45] Speaker 01:
And he filed the cert petition?

[00:22:47] Speaker 03:
He filed the cert petition.

[00:22:49] Speaker 03:
So we knew what was happening in the Millett case at all times.

[00:22:54] Speaker 03:
We deemed both the Millett case and now this case to be extremely important because essentially

[00:23:02] Speaker 03:
If, indeed, attorneys have to worry about whether they're going to be second-guessed as to whether there was good grounds for something and they could not get paid, it means that petitioners just are not going to be able to get lawyers to go beyond a decision by the Claims Court.

[00:23:17] Speaker 03:
And that is not the intent.

[00:23:19] Speaker 04:
And the intent of Congress and the intent of... You're saying, then, that an abusive discretion always exists when the attorneys don't get fit

[00:23:30] Speaker 04:
their fees paid.

[00:23:32] Speaker 04:
Oh, no, no, no, no, there's no... I mean, this discretion standard implies that there are some denials.

[00:23:39] Speaker 03:
There are always some denials.

[00:23:40] Speaker 03:
There are some frivolous cases.

[00:23:42] Speaker 03:
But our position is, if it's a good case... Frivolousness isn't the test, is it?

[00:23:47] Speaker 03:
Well, yes, for denial of fees for an appeal, that should be the test.

[00:23:52] Speaker 01:
Is it the test under our case law?

[00:23:54] Speaker 03:
No, it's not the test.

[00:23:55] Speaker 01:
Okay.

[00:23:56] Speaker 03:
Well, you're not arguing here that we ought to change

[00:24:00] Speaker 03:
Well, there's a lot of things I'd like to see changed, but no, I'm not arguing that formally.

[00:24:04] Speaker 03:
I'm saying basically, we cannot allow a situation to arise where lawyers who are already reluctant to participate in this program become more reluctant to go to appeal when they believe something is wrong, but they're not sure that they're going to get paid for it.

[00:24:19] Speaker 04:
Is that true that lawyers are reluctant to take these cases when they generally get paid, even if they lose?

[00:24:26] Speaker 03:
Your Honor, I haven't looked at the statistics

[00:24:30] Speaker 03:
in the last five years, but five years ago, there were 182 vaccine lawyers in the United States, despite the fact that they were going to get paid.

[00:24:39] Speaker 03:
It was at that time when I did that paper, it was a long time ago and it was not for the court.

[00:24:43] Speaker 03:
It was an academic paper.

[00:24:45] Speaker 03:
It was easier for a wounded dog to find a lawyer than it was for a vaccine in your child.

[00:24:49] Speaker 03:
So something is wrong.

[00:24:51] Speaker 01:
But looking at the numbers here, there was 1500 hours bill post litigation, right?

[00:24:57] Speaker 01:
And we're only talking about the appeal as being 160 of those 1,500.

[00:25:02] Speaker 01:
So you got the remainder of that, right?

[00:25:05] Speaker 03:
We got the remainder of that.

[00:25:07] Speaker 03:
But the problem is, will anybody take an appeal?

[00:25:10] Speaker 03:
I mean, basically, the Court of Claims has said it's OK to go to the Court of Claims, but it's not OK to go anyplace else.

[00:25:17] Speaker 03:
And an awful lot of the way we live today is based upon reversals of court precedent.

[00:25:26] Speaker 03:
So we can't make it difficult for lawyers to make that decision.

[00:25:33] Speaker 03:
And I know that some simply are not going to take appeals because of this case.

[00:25:39] Speaker 03:
And I think that has to be modified.

[00:25:41] Speaker 01:
OK.

[00:25:42] Speaker 01:
We've run out of time.

[00:25:43] Speaker 01:
Thank you.

[00:25:43] Speaker 01:
We thank both sides.

[00:25:45] Speaker 01:
The case is submitted.

[00:25:46] Speaker 01:
And we'll take a brief recess at this meeting.